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A “Disparate Impact” against Justice

The Supreme Court last week ruled 5–4 (Justice Kennedy writing the majority opinion, joined by the four liberals) that “disparate impact” claims may be brought under the Fair Housing Act. The Court’s decision is, needless to say, disappointing. It fails to follow the clear language of the statute, and it will encourage race-based decision-making in the housing area — exactly what the Fair Housing Act was meant to prohibit. The only silver lining is that Justice Kennedy’s opinion itself recognizes this problem, and some of the language toward the end will be useful in stemming the worst abuses.

To elaborate: The question presented in this case was, “Are disparate-impact claims cognizable under the Fair Housing Act?” Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — on the basis not only of race, color, or national origin but also of religion, sex, or familial status (that is, having children) — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing — to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs — some degree of “necessity” for the policy.

This numbers-driven, we-don’t-much-care-about-your-reasons approach inevitably results in pushing potential defendants away from perfectly legitimate and race-neutral policies and toward race-based decision-making: again, just the opposite of what civil-rights laws are supposed to do.

Justice Alito wrote the principal dissent (joined by Scalia, Thomas, and the chief justice) in today’s case, and he had much the better of the argument: that the words of the statute, as well as its history and purpose, do not contemplate such lawsuits. Justice Thomas also wrote a separate dissent of his own, devoted to attacking the Supreme Court’s decision in Griggs v. Duke Power Co. (1971), which started all this disparate-impact nonsense.

But now I will say something counterintuitive: The law is actually better now than it was before Justice Kennedy’s decision came down today.

This is true mainly because the bar is so low: All the courts of appeals to entertain this issue had adopted this approach, too, and the Obama administration and its allies in the civil-rights establishment were already interpreting the law this way. So things could not have gotten a lot worse, no matter what the Court had done today.

It is also true, however, that the law is now better because Justice Kennedy himself recognizes that the disparate-impact approach can lead to very bad results. The last part of his opinion sets some limits on it that will be useful. He warns courts against “second-guess[ing]” the nondiscriminatory reasons for challenged policies, requires a “robust causality requirement” rather than relying simply on racial disproportions, recognizes that “racial quotas” and “racial considerations” and “abusive . . . claims” can result from these lawsuits and just the threat of them, and that any “remedial orders must be consistent with the Constitution.” Justice Kennedy all but says that he expects the plaintiffs to lose in this case. He even calls Justice Alito’s dissent, which of course makes similar points, “well-stated.”

Given that the Court was unanimous, then, in recognizing the constitutional problems and bad policy results than can arise from the disparate-impact approach, conservative litigators have no reason not to continue to press courts to reject or at least limit the approach in other cases. For example, the door is still open for courts to reject its use under the Equal Credit Opportunity Act, to limit it under Section 2 of the Voting Rights Act, and to strike down disparate-impact regulations that have been promulgated under Title VI of the 1964 Civil Rights Act.

And then there is Congress, which ought now to amend the Fair Housing Act. And, while it is at it, Congress should clarify that in other contexts as well, the disparate-impact approach is invalid. We’ve even drafted for it the legislation it needs to pass.

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By the way, I was interviewed by National Public Radio, among other media, about the case, and you can listed to that interview here (I come in at about the 3-minute mark).

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Let’s end on a positive note, though:  The Supreme Court has also announced that it will grant review (again) in Abigail Fisher v. University of Texas, as the Center for Equal Opportunity had urged it to in an amicus brief we joined and help write in the case.  The litigation involves a challenge to the university’s use of racial and ethnic preferences in student admissions.